https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1395

Kioko v Ndii & 2 others (Civil Appeal 11 & 9 of 2020 (Consolidated)) [2026] KECA 1395 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KECA 1395 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal 11 & 9 of 2020 (Consolidated) W Karanja, LK Kimaru & AO Muchelule, JJA July 3, 2026 Between Mkeli Munyia Kioko Appellant and Antony Ndii 1st Respondent Nathan Mureithi Maganjo 2nd Respondent Muriithi Njomo Njuki & Nahashon Njuki (Legal Representatives of the Estate of Njomo Njuki) 3rd Respondent (Being an appeal from the judgment of the Environment and Land Court of Kenya at Embu (Angima, J.) dated 24th October, 2019 in ELC Case No. 38 of 2015 (Formerly Kerugoya ELC Case No. 803 of 2013) Judgment 1.By an amended originating summons dated 17th September, 2018, the appellant commenced proceedings against the respondents before the Environment and Land Court (ELC), seeking a declaration that she is the lawful owner of land parcels L.R. Nos. Mbeti/Gachururi/167, 166, and 242 (hereinafter “suit properties”), on the basis that she had acquired prescriptive rights under the doctrine of adverse possession. 2.It was the appellant’s case that she and her late husband entered the suit properties in the 1950s, settled there upon, and that all their children were born and raised on the suit properties. She urged that they extensively developed the suit properties, which contained several houses and mature trees, and that she has also been cultivating crops on the same. She asserted that her mother-in-law as well as her late husband who died in 2006 were buried on the suit properties. The appellant further contended that although the suit properties are registered in the names of the respondents, the respondents had never been in occupation of the suit properties. She maintained that she and her family have enjoyed open, continuous, uninterrupted and exclusive possession of the suit properties for a period of over 50 years. It was her position that, by operation of law, the respondents’ title to the suit properties had been extinguished, and that she had consequently acquired prescriptive rights thereto under the doctrine of adverse possession. 3.The 1st respondent, vide a replying affidavit dated 11th October, 2018, denied the averments made by the appellant. He deponed that the appellant had never been in occupation of the suit properties, specifically, land parcel No. Mbeti/Gachuriri/167, which is registered to him. He stated that he acquired land parcel No. 167 from one James Karimi Kangoro in 2016, and that he has since then enjoyed exclusive possession of the said parcel of land. He asserted that the appellant appeared uncertain as to the specific parcel of land she is in occupation of, which, in his view, explained her claim for adverse possession over three distinct parcels of land owned by different individuals. He swore that in a claim for adverse possession, one must clearly identify the specific parcel of land alleged to have been occupied. The 1st respondent further averred that the appellant’s husband purportedly purchased an unspecified parcel of land from the Muruga Clan, which was subject to an ownership dispute with the Mbandi Clan. He stated that the dispute was litigated upon upto the appellate level, where the court ultimately determined the matter in favour of the Mbandi Clan. 4.The 2nd respondents, in a replying affidavit sworn on the same date, deponed that their late father, Njomo Njuki, was the registered proprietor of land parcel no. Mbeti/Gachuriri/166, and that the appellant had never been in occupation of the said parcel of land. They reiterated the averments made by the 1st respondent, maintaining that the appellant had failed to specify the particular parcel of land she is allegedly in occupation of. They also cited the existence, previously, of the clan dispute. They contended, therefore, that her claim for adverse possession was unsustainable in law and ought to be disallowed. 5.The 3rd respondent, the registered owner of land parcel No.Mbeti/Gachuriri/242, echoed the averments made by the 1st and 2nd respondents in his replying affidavit sworn on the same date. 6.The case was heard by way of viva voce evidence. The appellant testified as PW1. It was her testimony that she and her late husband settled on the three suit properties in the 1950s. She stated that although the three parcels appear subdivided on the map, no such sub-division existed on the ground, and that she had been in exclusive possession of the said parcels of land which are in reality, one expansive piece of land. It was her testimony that “Mlango Komo” who is alleged to have been the original owner of parcel No. 167 does not exist, and that James Kirimi Karogu, who purportedly sold the said parcel of land to the 1st respondent, forged letters of administration in respect of the estate of Mlango Komo and, on that basis, caused the property to be transferred to himself. She maintained that Succession Cause No. 112 of 2013, from which the said letters of administration were allegedly obtained, in fact related to the estate of one Mlango Mathenge Ndungu. 7.PW2, Esther Mutua Syonguma, told the court that in the 1950s, the area chief known as Kombi Munyiri showed them where to settle, by pointing out the extent of the land allocated to them. It was her testimony that the suit properties, which was then one individual vast area of land, was allocated to the appellant, and that she and her husband settled thereon, built their home, and raised their children therein. She stated that the appellant is her neighbour. 8.PW3, Esther Kanini Munyia, the appellant’s daughter, told the court that she was born on the suit property in 1962, and that it was the only home she knew. She stated that they have buried their kin on the suit property. She echoed the appellant’s evidence that the 1st respondent acquired bad title from James Kirimi Kangoru, as the said vendor had acquired his title fraudulently. 9.On the other hand, the 1st respondent, Antony Ndii (DW1), told the court that he purchased land parcel No. Mbeti/Gachuriri/167 from James Karimi Kangoro in 2016. He stated that the said James was the grandson of Mlango Komo, the original registered proprietor of the suit property. He testified that Mlango Komo was a member of the Mbandi Clan, and had acquired the said parcel on first registration. The 1st respondent testified that at the time of purchase, the suit property was vacant, and that the appellant has never resided on the suit property. He testified that the suit property was subject of litigation between the Muruga and Mbandi Clans, and that the court decided in favour of Mbandi Clan. 10.The 2nd respondent, Murithi Njomo (DW2), testified that their late father was a member of the Mbandi Clan, and that he was allocated parcel No. 166 by the clan, and a title was issued thereof. He reiterated that the appellant has never been in occupation of the said parcel of land. 11.The 3rd respondent, Nathan Mureithi Maganjo (DW3), stated that parcel No. 242 was allocated to his late father, Maganjo Kathutwa, by the Mbandi Clan, in 1973. He denied the appellant’s claim that she has been in possession of the said parcel of land. 12.After hearing the parties, the learned trial Judge found that the appellant had proved her claim for adverse possession with respect to parcels Nos. 166 and 167, as against the 1st and 2nd respondents. Her claim for parcel number 242 as against the 3rd respondent was dismissed. 13.Aggrieved by this decision, the appellant and the 1st and 2nd respondents lodged separate appeals challenging the decision of the superior court. The appellant, in her memorandum of appeal dated 2nd January, 2020, proffered eight grounds of appeal. She stated that the learned Judge erred: in failing to appreciate that grazing constitutes exclusive use and occupation of land; in finding that failure by the appellant to fence parcel No. 242 meant that she was not in exclusive possession of the said property; failing to find that the appellant has been in exclusive possession of parcel No.242, to the exclusion of the 3rd respondent; failing to acknowledge that the appellant utilized the three suit properties as one whole undivided parcel of land; and finally, for disregarding the evidence on record, cited authorities and the law. The appellant urged this Court to find that she was the lawful owner of land parcel No. Mbeti/Gachuriri/242. 14.The 1st and 2nd respondents lodged a separate appeal (Civil Appeal No. 9 of 2020) against the same decision of the learned trial Judge. They raised seven grounds of appeal in their memorandum of appeal dated 21st January, 2020. They faulted the learned Judge for finding that no evidence was led to show that the respondents occupied the parcels of land Nos. 166 and 167.They were aggrieved that the learned Judge failed to appreciate that the appellant did not specify which parcel of land she was in occupation of, and that no evidence was led to establish that she cultivated on parcels of land Nos. 166 and 167.They took issue with the fact that the learned Judge failed to make an order to the effect that the suit parcels of land be visited by the court, which the respondents had specifically made a request for. They faulted the learned trial Judge for allowing the appellant’s claim for adverse possession, despite the appellant’s contention that the respondents had acquired their titles fraudulently. They were of the view that the decision of the learned Judge was against the weight of the evidence on record and thus the appeal should be allowed. 15.The two appeals were consolidated and heard together as one.The appeal was canvassed by way of written submissions. The appellant did not file any written submissions. She and her advocate were also absent when the appeal came up for hearing. 16.The 1st and 2nd respondents filed written submissions in support of their appeal. They also filed written submission in opposition to the appeal by the appellant. Mr. Andande appeared for the 1st and 2nd respondent. It was his submission that other than her word of mouth, the appellant did not tender any evidence to establish that she was in occupation of the suit properties, and further, that she failed to specify which specific parcel of land that she was in occupation of. He explained that the appellant, in her testimony, claimed that she was in occupation of 25 acres of land, but was unable to describe the title numbers of the said parcels of land. He submitted that identification of land in possession of an adverse possessor was crucial in establishing such a claim. He submitted that the appellant, in her testimony, was categorical that the land she occupied had not been subdivided; however, the trial court found that she occupied only parcels of land Nos. 166 and 167, which were subdivisions of a previously larger parcel of land. He further pointed out that the green card the appellant produced in evidence clearly indicated that the suit properties had been subdivided with defined boundaries, thereby demonstrating that she was uncertain as to the specific land she was in occupation of. 17.Counsel for the respondents contended that without a site visit report, the evidence on record was insufficient to prove that the appellant was in possession of the suit properties. He faulted the learned Judge for failing to appreciate that the suit properties were distinct as they were first registrations, and could not be lumped into one mother parcel of land. He urged that the appellant’s allegation that the respondents fraudulently acquired their titles was inconsistent with, and could not be maintained alongside, her claim for adverse possession, because an adverse possessor must acknowledge the registered proprietor’s title as valid and subsisting. Counsel faulted the learned Judge for disregarding the respondents’ evidence to the effect that at the time of purchase or acquiring of their respective parcels of land, the appellant was not in possession thereof. He submitted that the appellant’s intention was to dispossess the respondents as the true owners of the land, as the evidence on record showed that she always viewed them as land grabbers. He therefore urged us to allow the respondent’s appeal and dismiss the appellant’s appeal. 18.This being a first appeal, it is the duty of this Court to analyze and re-assess the evidence on record and reach its own conclusions. This duty was reiterated by this Court in Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, where the Court observed thus;“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.” See Selle v. Associated Motor Boat Co. [1968] EA 123. 19.Having re-evaluated the grounds of appeal, record of appeal, as well as the arguments made by the 1st and 2nd respondents, the issue for determination is whether the appellant established to the required standard of proof on a balance of probabilities that she had acquired title to the three parcels of land by adverse possession. If the appellant is found not to have established this fact, then the fate of the 1st and 2nd respondents’ appeal would have been determined in their favour that the appellant failed to prove her claim to the required standard of proof. 20.The law in respect to circumstances under which adverse possession is established is well settled by various decisions of this Court.In Lewa v. Mwagandi [2015] KECA 532 (KLR) Kathurima M‘Inoti JA held thus:“6... Adverse possession is essentially a situation where a person takes possession of land and assets rights overs it and the person having title omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action by default or inaction of the owner. The essential prerequisites being that possession of the adverse possessor is neither by force or stealth or under the licence of the owner. It must be adequate in continuity, in publicity an in extent to show that possession is adverse to the title owner.”Further, in Kihamba v. Mbaisi [2015] KECA 853 (KLR) this Court held that:“18.Strictly, for one to succeed in a claim for adverse possession one must prove and demonstrate that he has occupied the land openly, that is, without force, without secrecy, and without licence or permission of the land owner, with the intention to have the land. There must be apparent dispossession of the land from the land owner. These elements are contained in the latin Physiology, nec vi, ne clam, nec precario. The additional requirement is that of animus possidendi, or intention to have the land. See Eliva Nyongesa Lusenaka & another v. Nathan Wekesa Omecha Kisumu Civil Appeal No. 134 of 1993 (UR). These prerequisites are required of any claimant irrespective of whether the claimant and the respondent are related or whether the claim relates to family/ancestral land.”19.This Court in Kasuve v. Mwaani Investment Limited &4 others [2004] KLR 184 at page 188 decided that:“In order to be entitled to land by adverse possession, the claimant must prove that he has been in exclusive possession of land openly and as of right and without interruption for a period of 12 years, either after dispossession of the owner or by discontinuation of possession by the owner on his own volition. See Wanje v. Saikwa [1984] KLR 284.” 21.In the present appeal, it was the appellant’s case that she had resided on the three parcels of land, namely land parcel Nos. Mbati/Gachuriri/167, 166 and 242 since the 1950’s when she settled on the land with her late husband and mother -in -law. The appellant testified that she had lived on the said parcels of land for decades without anyone challenging their occupation of the land. Upon their demise, her husband and mother -in- law were buried on the suit parcels of land without any one objecting to their burial. That the appellant and members of her family had occupied the parcels Nos. 166 and 167 was corroborated by the testimony of PW2, her neighbor, who testified that the appellant had occupied the said parcels of land since the 1950’s. PW3, the appellant’s daughter testified that she was born in 1962 and had lived on the suit parcels of land ever since. She did not have any other home. The appellant’s claim on parcel No.242 was found to be tenuous by the ELC by reason that she had not established that she had resided on the land other than alleging that she cultivated the land. On the basis of evidence adduced, we cannot disagree with that finding. 22.The evidence adduced by the appellant in regard to the length of her stay on the two parcels of land was largely uncontested. The 1st and 2nd respondents did not adduced any evidence to challenge the evidence adduced by the appellant regarding her long stay on the said parcels of land. The only basis of the 1st and 2nd respondents’ claim was that the land previously belonged the Mbandi clan to which their late relative one Njomo Njuki belonged. It was their further case that the said Njuki Njomo was the first registered owner of the land parcel No. Mbeti/Gachuriri/166 while one “Mlango Komu” alias “Mlango Mathenge Ndungu” (deceased) was the first registered owner of parcel No. Mbeti/Gachuriri/167. What the 1st and 2nd respondents did not establish, which they were required to prove, was that they were in actual possession of the suit parcels of land during the material period of time. They failed to do so and therefore, on a balance of probabilities, they were not able to displace the credible and cogent evidence that was adduced by the appellant which established that she and members of her family were in occupation of the suit parcels of land from the 1950’s to date. They did not lay any evidence before court to establish the fact that they had made any effort to discontinue the appellant’s possession of the suit parcels of land in the intervening period. 23.In the premises therefore, we cannot fault the decision of the trial Court that held that the appellant had established adverse possession over the two parcels of land to the required standard of proof. 24.In that regard, the 1st and 2nd respondents’ appeal lacks merit and is hereby dismissed but with no orders as to costs since the appellants did not attend court during the hearing of the appeal. 25.With respect to the appellant’s appeal, since it was not prosecuted, the same is dismissed for want of attendance pursuant to Rule 105(1) of the Court of Appeal Rules. 26.It is so ordered. DATED AND DELIVERED AT NYERI THIS 3RD DAY OF JULY, 2026.W. KARANJA....................................JUDGE OF APPEALL. KIMARU....................................JUDGE OF APPEALA.O. MUCHELULE....................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDeputy Registrar